THE MALAYSIAN JUVENILE JUSTICE SYSTEM - Unicef.pdf

THE MALAYSIANJUVENILE JUSTICE SYSTEM A Study of Mechanisms forHandling Children in Conflict with the Law

All photographs are courtesy of UNICEF Malaysia.

UNICEF Malaysia 2008

2

All photographs are courtesy of UNICEF

Cover photos:

UNICEF/NYHQ2006-1500/Pirozzi UNICEF/DSA2010-00014/Rose UNICEF Malaysia/2009/Zahri UNICEF/NYHQ2004-1004/Noorani

Ministry of Women, Family and Community Development and UNICEF Malaysia, 2013

This publication may be freely reviewed, abstracted or translated in part or whole with the appropriate acknowledgement. It may not be used in conjunction with commercial purposes.

ISBN: 978-983-3252-28-2

Research Team:Shelley Casey, AssociateTan Tiangchye, AssociateChris Ng, Childrens ResearcherShalina Azhar, Childrens Researcher

UNICEF Editorial:Selvi Supramaniam, Child Protection Specialist

Acknowledgements:This assessment of the juvenile justice systemin Malaysia was commissioned through a jointcollaboration of the Ministry of Women, Family and Community Development and UNICEF Malaysia.

The fieldwork was conducted by a range of international and Malaysian consultants, supported by staff members of the Ministry of Women, Family and Community Development, Department of Social Welfare and academic institutions.

The report was written by [Child] Frontiers, aninternational consulting company focusing on child protection issues.

THE MALAYSIAN JUVENILE JUSTICE SYSTEM

A Study of Mechanisms forHandling Children in Conflict with the Law

FOREWORD4

FOREWORDSECRETARY GENERAL, MINISTRY OF WOMEN, FAMILYAND COMMUNITY DEVELOPMENT

According to Articles 37 and 40 of the Convention on the Rights of the Child (1989), children in conflict with the law have the right to treatment that promotes their sense of dignity and worth, taking into account their age and their reintegration into society. Also, placing children in conflict with the law in a closed facility should be a measure of last resort, to be avoided whenever possible.

As such, the Malaysian Juvenile Justice System report, prepared by the Ministry of Women, Family and Community Development in collaboration with UNICEF is another significant initiative towards evaluating the current practice as well as highlighting challenges and issues of children in conflict with the law in Malaysia. The term juvenile justice often refers to legislation, norms and standards, procedures, mechanisms and provision, institutions and bodies specifically applicable to juvenile offenders.

Key findings and recommendations from the report will enable the Ministry of Women, Family and Community Development to develop a more holistic solution in addressing matters relating to children in conflict with the law. This includes diversion (directing children away from judicial proceedings and towards community solutions), restorative justice (promoting

reconciliation, restitution and responsibility through the involvement of the child, family members, victims and communities), and alternatives to custodial sentencing (counselling, probation and community service).

In addition, there is a need for a multi-disciplinary approach and for proper recruitment and training of personnel who work with children. This will reduce incarceration of young offenders and provide a second chance for the juveniles. In other words, children are provided with opportunities to change their behaviour and attitudes.

DATO SRI DR. NOORUL AINUR MOHD. NUR

THE MALAYSIAN JUVENILE JUSTICE SYSTEM 5

FOREWORDUNICEF REPRESENTATIVE, MALAYSIA

There are many reasons why children come in conflict with the law. Child offenders often come from broken homes or troubled families or have been abused or neglected. Poverty is also a factor that puts children at risk. Some children come into conflict with the law as they struggle with learning disabilities and mental health problems. Others become involved in gang activity or with drugs and alcohol, at a young age, which eventually paves the way to juvenile crime.

Each time children come into conflict with the law, they are at a crossroads. And each crossroad is an opportunity to turn a life around from one of poor decisions, missed opportunities and future crime, to one of fulfilment of potential and societal integration.The Malaysian Government has recognised that a comprehensive juvenile justice system is the key to capitalising on these opportunities. In collaboration with UNICEF, the Ministry of Women, Family and Community Development undertook a study to examine the mechanisms for handling children in conflict with the law in Malaysia, with the aim of identifying concrete steps to strengthen the juvenile justice system.

Rooted in the principles of the Convention on the Rights of the Child, which recognises that the human rights of the child should be respected throughout the juvenile justice process, this report outlines some specific recommendations for strengthening the Malaysian juvenile justice system. Key among them is the need for a high-level, inter-agency Child Justice Working Group to develop an integrated national

Juvenile Justice Reform Strategy and Plan of Action that incorporates prevention and early intervention measures.

As the Malaysian Government moves forward with this agenda, it is useful to learn from new global strategies, which are moving away from formal police, court-based interventions. Evidence has clearly shown that institutionalising children has proven to be ineffective, and in fact may increase the chances that the child will go on to commit further crimes. Approaches focused on diversion, which channels children away from the formal justice system into programmes that make them accountable for their actions and other community-based responses, have achieved better results.

Thus, a holistic reform of the countrys juvenile justice system is not just in the best interest of children in conflict with the law, but is also in the best interest of Malaysian society.

With this publication, UNICEF reaffirms its continued commitment to work together with the Government, NGOs, civil society and other partners, to strengthen the Malaysian juvenile justice system.

WIVINA BELMONTE

ACKNOWLEDGEMENTS 2

FOREWORD 4

ABBREVIATIONS AND ACRONYMS 8

EXECUTIVE SUMMARY 9

INTRODUCTION 14

AGE AND CRIMINAL RESPONSIBILITY 22 ARREST AND INVESTIGATION 31 BAIL AND PRE-TRIAL DETENTION 40 DIVERSION 49 DEFENCE COUNSEL 56

JUVENILE COURT AND TRIAL PROCEDURES 62 SENTENCING PRINCIPLES AND PRACTICES 71

COMMUNITY-BASED REHABILITATION PROGRAMMES AND SERVICES 90

CORRECTIONAL SCHOOLS, REHABILITATION CENTRES AND PRISONS 101

REINTEGRATION 120 RECORDS AND PRIVACY 126

CONCLUSIONS AND RECOMMENDATIONS 130

KEY REFERENCES 137

ANNEX 141

TABLE OF CONTENTS


ABBREVIATIONS AND ACRONYMS

2M Kelas Intervensi Awal Membaca dan Menulis (reading and writing)

Asrama Probation Hostel

Beijing Rules UN Minimum Rules for the Administration of Juvenile Justice

CID Criminal Investigation Division

CPC Criminal Procedure Code

CPT Child Protection Team (Pasukan Perlindungan Kanak-Kanak)

CRC Convention on the Rights of the Child

CWC Child Welfare Committee

DPP Deputy Public Prosecutor

ESCAR Essential (Security Cases) Regulations 1975

FGC Family Group Conference

FIPA Firearms (Increased Penalties) Act 1971

ISA Internal Security Act 1960

ILKAP Institut Latihan Kehakiman dan Perundangan (Judicial & Legal Training Institute)

ISM Institut Sosial Malaysia (Social Institute of Malaysia)

JDLs UN Rules for the Protection of Children Deprived of Liberty

JKM Jabatan Kebajikan Masyarakat (Department of Social Welfare)

JKMN Jabatan Kebajikan Masyarakat Negeri (State Social Welfare Department)

KSU Secretary General

LPPKN Lembaga Penduduk dan Pembangunan Keluarga Negara (National

Population and Family Development Board)

PMR Penilaian Menengah Rendah (Lower Secondary School Certificate)

MWFCD Ministry of Women, Family and Community Development (Kementerian Wanita, Keluarga

dan Masyarakat)

OCPD Officer-in-Charge of the Police District

PAKK Pusat Aktiviti Kanak-Kanak (Child Activity Centre)

PPKK Pasukan Perlindungan Kanak-Kanak (Child Protection Team)

RMP Royal Malaysian Police (Polis Diraja Malaysia)

SPM Sijil Pelajaran Malaysia (Malaysian Certificate of Education)

STB Sekolah Tunas Bakti (Approved School)

STPM Sijil Tinggi Persekolahan Malaysia (Malaysian Higher School Certificate)

SUHAKAM Suruhanjaya Hak Asasi Manusia Malaysia (Human Rights Commission of Malaysia)

UKM Universiti Kebangsaan Malaysia (National University of Malaysia)

UNICEF United Nations Childrens Fund

ABBREVIATIONS AND ACRONYMS8

Malaysia has also met the CRC requirement of setting

a minimum age below which children are considered

too young to be held criminally responsible for their

actions. However, the current minimum age is low by

international standards. In its Concluding Observations,

the UN Committee on the Rights of the Child noted

with concern the low minimum age of criminal

responsibility and recommended that Malaysia raise

the age to at least 12. Since very few children under

the age of 12 are currently involved in crime, the age

could be raised without compromising public security.

While the Child Act was enacted in 2001, the States

fundamental approach to children in conflict with the

law has remained fundamentally the same since it

was first introduced in 1947. As a result, new global

strategies, such as diversion, are not adequately

reflected in law and practice. Drawing largely from the

UK system of the day, Malaysias approach to juvenile

justice is grounded in formal police and Court-based

interventions and institution-based rehabilitation.

However, this approach has been demonstrated to be

the most costly and least effective way of dealing with

child offending. The trend globally has been to shift

away from these formalised approaches, investing

instead in the development of diversion and other

community-based responses to child offending. There

are currently a significant number of childrens cases

being processed through the formal court system that

could be handled more effectively, and cost-efficiently,

through diversion. Diverting these less serious cases

from the Court system would reduce Court backlogs

and result in significant savings in terms of transport,

logistics and remand costs.

For children who are being formally processed through

the criminal justice system, Malaysia has introduced

some important protections designed to safeguard

children, starting from the very initial stages of arrest

EXECUTIVE SUMMARY

In December 2006, Malaysia submitted its first periodic Country Report to the UN Committee on the Rights of the Child outlining the progress made

in implementing the Convention on the Rights of

the Child. In its Concluding Observation regarding

Malaysias report, the Committee acknowledged

the positive measures that the country has taken

to promote childrens rights, and to comply with

international standards regarding juvenile justice.

However, it also highlighted some areas of concern

with respect to the handling of children in conflict with

the law, and strongly encouraged the Government

of Malaysia to seek technical assistance from UN

agencies, including UNICEF, to address these issues.

In response to the Committees recommendations,

the Ministry of Women, Family and Community

Development sought assistance from UNICEF to

undertake a comprehensive study of the juvenile

justice system. The objectives of the study are to:

a) present an overview of the nature and extent of

juvenile offending in Malaysia; and b) take stock of

current practices and identify opportunities to apply

innovative new approaches based on international

best practices.

The study found that, in accordance with the CRC and

international best practices, the Malaysian government

has recognised the need to have a separate and

distinct approach to handling children in conflict with

the law. Special legislation governing children who

commit crimes has been in place since 1947 and,

in both in law and practice, measures are taken at

all stages of the criminal justice process to ensure

that children are separated from adults and afforded

special care and protection. However, there are some

statutory exceptions, resulting in lesser protection

for children who commit security offences, who are

not formally charged until after they turn 18, or who

commit offences together with adults.


and investigation. However, it has yet to develop

a comprehensive, specialised police response to

children in conflict with the law. While the Child Act

includes some provisions on the arrest of children, it

provides limited guidance with respect to issues such

as alternatives to arrest, restrictions on use of force or

restraints, duration and conditions in police custody,

and the presence of parents, probation officers, or

lawyers during investigative procedures. While the

police are generally cognizant of the need to handle

childrens cases more sensitively, they have not been

provided the necessary skills, directives, facilities, and

oversight to ensure that this happens in all cases. As a

result, complaints of police abuse persist.

Malaysia currently has a relatively moderate rate of

pre-trial detention or remand. However, the significant

number of children who are held on remand for

very minor offences is cause for concern, as is the

consistently high percentage of children in prisons who

have not yet been found guilty of a crime. This is not

only harmful to the child, but also costly to the State

and contrary to long-term public safety, as it can result

in increased rates of recidivism. Available statistics

suggest that in most cases, children on remand have

their cases dealt with within the maximum six-month

time frame recommended by the UN Committee

on the Rights of the Child. However, due to the lack

of legislated standards and systemic monitoring

practices, there are cases of children being held on

remand for lengthy periods of times, sometimes in

excess of the term of imprisonment they would be

subjected to if sentenced as an adult. In its Concluding

Observations, the UN Committee on the Rights of the

Child expressed concern with regard to the long pre-

trial detention periods and delays in dealing with cases

involving children.

Malaysia has also made significant progress in

promoting separated court proceedings for children

in conflict with the law by dedicating special days

for childrens cases to be heard by designated

Magistrates. In most districts, the current volume

of cases would not justify a fully separate Court for

Children; however, the number of days per week that

the Court for Children sits should be closely monitored

and adjusted to meet the volume of cases being

registered. In addition, greater measures could be

taken, using existing infrastructure, to make the court

experience more child-friendly and less intimidating,

thereby encouraging more substantive participation of

children and their parents.

In both law and practice, Malaysia currently employs

a different approach when sentencing children.

When deciding on the appropriate order to impose,

consideration is given not just to the seriousness of the

offence, but also the background and circumstances

of the child. However, the principles and criteria to

be considered when imposing an order on children

are not clearly articulated in either law or judicial

precedent, resulting in differing interpretations and

application. The CRC principles of proportionality and

institutionalisation as a last resort are not adhered to

consistently, resulting in children being subjected to

lengthy custodial orders, often for very petty crimes

such as theft.

Malaysia has made progress in recent years in improving

community-based supervision and rehabilitation

programmes for child offenders, particularly through

the introduction of interactive workshops. However,

these programmes remain under-resourced and the

volunteer mechanisms meant to support this process

are not functioning effectively or as per their mandate.

Programmes tend to be ad hoc and focus primarily on

the parent-child relationship, with limited emphasis

on inter-active, experiential learning programmes

for the children themselves. Malaysia currently has

a cadre of highly dedicated district-level probation

EXECUTIVE SUMMARY10

officers and professional counsellors tasked with

supporting children in conflict with the law and their

families. However, due to a shortage of staff, training

and resources, most have limited ability to provide

individual guidance and support to children.

Malaysia has also developed a range of custodial

institutions aimed at the rehabilitation of children

in conflict with the law, including both low security

facilities under the JKM, as well as more secure

rehabilitative schools and correctional centres under

the Prisons Department. In all custodial institutions,

boys are now fully separated from adult inmates.

However, girls continue to be detained together

with adult women, contrary to the requirements

of the CRC. Both JKM and Prisons Department

facilities have developed education and vocational

training programmes designed to assist children

with their reintegration after release. In particular, the

recent collaboration between the Malaysian Prisons

Department and the Ministry of Education represents

a significant step forward in the governments efforts

to fulfil its obligations under the CRC. However, in both

JKM and Prisons Department facilities, the approach

to rehabilitation is based largely on a standardised

regime of discipline, religious instruction and vocational

training. There is no individualised assessment or care

planning, and all children follow the same standard

programme and daily routine. In general, all institutions

for children are large in size, which limits the ability

for individualised treatment and the development of

trusting relationships between children and staff.

In order to facilitate childrens reintegration and prevent

re-offending, children released from institutions

spend an additional year under the supervision of a

probation officer, or in the case of children released

from prisons, the police. However, emphasis seems to

be largely on monitoring and surveillance, rather than

providing support. There are no written reintegration

support plans, and as with children under other forms

of supervision, probation officers have limited time

and resources for individualised guidance. Children

released from prison facilities do not have access to

ongoing support, other than the requirement to report

periodically to a police station.

In order to strengthen existing initiatives and modernise

its approach to child offending, it is recommended

that Malaysia undertake a holistic reform of its juvenile

justice system. As a first step, it is recommended that

a high-level, inter-agency Child Justice Working Group

be formed to develop an integrated national Juvenile

Justice Reform Strategy and Plan of Action. This

strategy should draw on international standards and

global best practices in the administration of juvenile

justice, while at the same time ensuring the system

is relevant and appropriate to the Malaysian context.

It is recommended that the Juvenile Justice Reform

Strategy aim to:

Strengthen the legal framework for the administration of juvenile justice by amending the Child Act to: Raisetheminimumageofcriminalresponsibilityto

12;

Includeastatementofguidingprinciplesdrawn

from the CRC and international standards;

Provideacompletecodeforthehandlingofall

children in conflict with the law, not just those

appearing before the Court for Children;

Extendthescopeofspecialjuvenilejustice

protections to all children under the age of 18 at

the time the offence was committed;

Introducediversionandregulatethetypesof

offences for which diversion may be used, the

criteria and procedures for decision-making and

the types of diversionary programs that should be

available;


Includemoredetailedproceduresregulatingarrest

and police custody of children;

Allowbailinallcases,dependingonthe

background and circumstances of the child and

nature and circumstances of the case. Introduce

a broader range of alternatives to remand and

provide guidance on the factors to be taken into

account when making decisions about pre-trial

release.

Includestricttimelimitsforcompletingchildrens

cases, particularly where children are on remand;

Provideawiderrangeofnon-custodialsentencing

options;

Eliminatethefixed,three-yeartermforSTBand

Henry Gurney School orders, and ensure that

the duration of all custodial placements is in

accordance with the principle of proportionality;

Prohibitlifeimprisonmentandindefinitedetention,

and set a maximum term of imprisonment in line

with international standards.

Improve Arrest and Investigation Practices by: DevelopingdetailedStandingOrdersforpolice;

Establishingspecializedpoliceunitsinmajorcities

to handle all child suspects and designating child

specialists in other locations;

Developingashortcourseforpolicespecialists

and a brief session on children for all new police

recruits;

Involvingprobationofficers(ortrainedvolunteers)

from point of arrest;

Requiringaparent,probationofficer,lawyer,

or some other supportive adult to be present

whenever a child is questioned by the police;

Ensuringpropermonitoringandoversightofcases

involving children;

Establishingmorecentralizedlock-upsforchildren,

with appropriate facilities.

Reduce the Number of Children Being Formally Arrested and Tried by: Givingpolice,DPPandMagistratesgreater

discretion to refer children to a diversion

programme, rather than initiating or continuing with

formal charges;

Introducingaformalscreeningprocessesto

identify cases that are appropriate for diversion as

soon as possible after arrest;

Developingdiversionprogrammesthatwill

hold children accountable for their actions, and

address underlying factors that contributed to their

misbehaviour.

Improve Court Proceedings for Children by: Developingapracticedirective,handbookand

training programme for Magistrates and DPP;

DesignatingspecializedMagistratesandDPPin

each district to hear all childrens cases;

UsingMagistratesChambersormodifying

courtroom furniture when sitting as the Court for

Children;

Developinghandbooksandtrainingprogrammes

for defence counsel;

IntroducingadutycounselsystemintheCourtfor

Children.

Reduce the Number of Children in Institutions by: TrainingMagistrates,DPPandprobationofficerson

principles of sentencing;

Strictlyenforcingtheprincipleofinstitutionalisation

as a last resort;

Buildingthecapacityofprobationofficersto

provide in-depth probation reports;

Strengtheningcommunity-basedalternativesfor

supervision and rehabilitation of child offenders;

EnsuringtimelyappointmentofBoardofVisitors

/VisitingJusticesandrequiringregular,periodic

and independent reviews of all children who are in

institutions;

Introducingnewstrategiesforhandlingbeyond

control children without institutionalization.

EXECUTIVE SUMMARY12

Strengthen community-based supervision and rehabilitation of child offenders by: Appointingmoreprobationofficersand/or

amending the Child Act to allow trained volunteer

probation officers to provide assistance;

Buildingtheskillsandcapacityofprobationofficers

to develop structured, written intervention plans for

children subject to community orders, based on a

comprehensive assessment of both the child and

family.

Promoteanindividualisedandmultidimensional

approach to intervention planning, with support

aimed at addressing not just the parent/child

relationship, but also the childs cognitive and social

skills, peer network, as well as education, training

or employment needs;

Designingmorestructured,inter-activeexperiential

learning programmes to replace the existing ad hoc

motivational programmes;

Introducingamentoringprogramme;

Developinganattendancecentremodelusing

existing Child Activity Centres. This will likely

require some additional guidance and skills training

for Centre staff;

Considerintroducingamoreintensivesupportand

supervision programme for high-risk children who

need more guidance and support;

ReconsidertheroleandfunctionsoftheChild

Welfare Committees, which are currently not

functioning effectively.

Improve conditions in detention by: Promotingthedevelopmentofsmaller,

decentralised open custody facilities to replace the

current model of large-scale STBs and hostels;

Reformingtheoverallregimeandphysicallayout

of STBs and hostels to be more home-like and

therapeutic, rather than the current focus on

discipline, drills and prison-like regimentation;

AllowingallchildreninSTBsandHostelstoaccess

education and vocational training programmes in

the community;

DraftingnewregulationsforSTBs,HenryGurney

Schools and Juvenile Correctional Centres that

conform with international standards;

Introducingindividualisedassessmentandcase

planning for all children;

Exploringinternationalmodelsandnewpractices

in institution-based rehabilitation of child offenders

and developing new programmes more specifically

aimed at addressing offending behaviour;

Providingtravelallowanceforparentswhocannot

afford to visit their children;

Developingspecialisedtrainingprogrammesforall

institution staff.

Improve prevention and early intervention measures by: Developingparentingskillstrainingandpeer

support programmes that parents who are

experiencing difficulties with their adolescents can

access voluntarily;

Establishinggreatercoordinationandreferral

mechanisms between school counsellors and

social welfare officers so that children and parents

who are experiencing difficulties are identified early

and referred to appropriate support services;

Developingspecialised,non-stigmatising

programmes for teenagers who are involved in

substance abuse or exhibiting behaviour problems,

such as mentoring and inter-active, experiential life

skills programmes;

Promotegreateropportunitiesforadolescents

to engage in positive social and recreational

activities, particularly in low-income and high-crime

neighbourhoods;

Improveaccesstovocationalskillstraining,career

counselling and job placement support for school-

leaving adolescents.


14

INTRODUCTION

justice. However, it also highlighted some areas of

concern with respect to the handling of children in conflict

with the law and strongly encouraged the Government

of Malaysia to seek technical assistance from UN

agencies, including UNICEF, to address these issues.

In response to the Committees recommendations,

the Ministry of Women, Family and Community

Development sought assistance from UNICEF to

undertake a comprehensive study of the juvenile

justice system. The objectives of the study are to:

a) present an overview of the nature and extent of

juvenile offending in Malaysia; and b) take stock of

current practices and identify opportunities to apply

innovative new approaches based on international

best practices. The study includes an analysis of the

legal and normative framework for juvenile justice; the

government structures, processes and procedures for

responding to child offending; and the measures and

services available to promote childrens rehabilitation

and prevent re-offending.

In broad terms the study considered:

Thenatureandextentofandtrendsinyouth

offending in Malaysia;

Nationallaws,policiesandstandardspertaining

to children in conflict with the law at all stages

of the criminal justice process;3

Thestructures,processesandproceduresin

place to put these laws into practice; and

Programmesandservicestosupportchildren

in conflict with the law, including institution-

based rehabilitation programmes, as well as

community-based alternatives.

Background

Every day, throughout the world, children come into

conflict with law enforcement officials because they

are alleged or accused of having committed a criminal

offence. How these children are handled can have a

profound impact on their future prospects, and may

be determinative of whether they grow up to become

productive citizens or fall into a life of crime. For this

reason, the Convention on the Rights of the Child

(CRC)1 requires States parties to develop specialised

responses for dealing with children in conflict with the

law that take into account their young age and are aimed

at promoting their reintegration and development as

productive citizens.

In December 2006, Malaysia submitted its first

periodic Country Report to the UN Committee

on the Rights of the Child outlining the progress

made in implementing the CRC. In its Concluding

Observation regarding Malaysias report2, the

Committee acknowledged the positive measures that

the country has taken to promote childrens rights and to

comply with international standards regarding juvenile

States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated

in a manner consistent with the promotion of the childs sense of dignity and worth, which reinforces the childs respect for the human rights and fundamental freedoms of others and which takes into account the childs age and the desirability of promoting the childs

reintegration and the childs assuming a constructive role in society.

-CRC, Article 40

1 Ratified by Malaysia in 1995, with reservations relating to several articles, including Article 37 (torture, punishment and deprivation of liberty), but not Article 40 (administration of juvenile justice).2 CRC/C/MYS/CO/1, 25 June 2007, available at: http://www2.ohchr.org/english/bodies/crc/crcs44.htm.3 Note: the scope of the study is restricted to the formal criminal justice system and excludes proceedings before the Syariah Courts and Native Courts, both of which have some limited criminal jurisdiction.


It is hoped that reviewing juvenile justice practices will

help ensure that policies and programmes evolve to

take into account national and international expertise

about what is most effective, thus positioning Malaysia

as a leader in the region. In doing so, Malaysia joins

a host of other countries such as UK, Canada, US,

New Zealand, Australia, and South Africa, which have

recently begun to re-think and reform the fundamental

principles and approaches to the States response to

youth offending.

Methodology

The Study was undertaken by Child Frontiers, an

international child rights research company. The

research team consisted of one international researcher

and three national researchers, who were advised

throughout by a technical committee consisting of

local academics and juvenile justice experts. The

study, undertaken over a three month period in 2009,

used a mix of qualitative and quantitative methods and

involved the following key components:

Desk Review of existing reports, studies, evaluations, and other information pertaining to the juvenile justice

system;

Analysis of Legal and Policy Framework governing the juvenile justice system;

Analysis of Statistics to present a general picture of the nature and extent of youth offending and the State

response; and

Field Research consisting of semi-structured interviews and group discussions with key informants,

including key officials from relevant national ministries

and agencies, academics and NGO representatives,

front-line service providers, and children and their

families. In addition, site visits were undertaken to

selected institutions for children in conflict with the

law. Field work was carried out in Putrajaya, Kuala

Lumpur, Selangor (Kajang prison), Melaka, Sabah (Kota

Kinabalu), and Johor (Johor Bahru).

Nature and Extent of Juvenile Offending

Malaysia has a fairly young population, with 60

percent of its population below 30 years of age. The

general perception amongst stakeholders is that child

offending has increased in recent years and that the

types of crimes that children are committing have

become more serious. However, assessing patterns of

offending is difficult due to gaps in data collection and

inconsistencies in statistics collected by the different

agencies. It is also difficult to measure the extent to

which changes in child crime statistics reflect an actual

change in rates of child offending, or merely changes

in policing and data collection practices.

Police statistics show a steady increase in the

number of children subjected to arrest for criminal

code offence between 2003 and 2008. During that

same period, the number of children arrested for drug

offences increased dramatically, though it is unclear

whether this represents an increase in drug-related

crimes committed by children, or simply increased

police focus on drug activities.

INTRODUCTION16

The trend in criminal arrests is slightly less dramatic

when figures are adjusted to reflect the growth in the

number of children between the ages of 10 and 18

in the Malaysian population. Statistics show that from

2003 to 2008 the rate of arrests for children between

the ages of 10 and 18 who committed criminal

offences rose marginally from 240, to 370 per 100,000

population from the age group.

Number of Children Arrested for Criminal Code Offence (2003 - 2008)4

Source: Royal Malaysia Police, 2003 - 2008

20000

15000

10000

5000

2003 2004 2005 2006 2007 20080

Crimes

DrugOffences

4 Note: Refers to children charged with offences under the Penal Code and with drug offences, and excludes children charged with traffic violations and other minor infractions.

Rate of Children Arrested, per 100,000 of Children Age 10 - 18 (2003 - 2008)

Source: Court Registrar, 2003 - 2008

400

300

200

100

0

2003 2004 2005 2006 2007 2008


Number of Childrens Cases Registered with the Court (2003 - 2009)


4000

3000

2000

1000

2003 2004 2005 2006 2007 2008 20090

INTRODUCTION

In contrast to police statistics, data from the Court

shows significantly lower rates of child offending for

the same time period, as well as a decrease in the

number of child offender cases registered before the

5 The Court was requested to provide statistics on the number of children registered before all levels of court, however it is unclear whether the information provided relates only to the Court for Children. If so, this may explain some of the inconsistencies, since it would exclude children charged with serious offences that are within the jurisdiction of the High Court, and children co-accused with adults.

Percentage of Children Convicted by the Court, by Type of Offence (2003 - 2009)


Theft52%

Other4%

Intimidation1%House Breaking

10%

Pick Pocket1%

Causing Hurt5% Rape

3%

Robbery4%

Drugs20%

Courts. It is not clear whether this is the result of errors

or differences in data collection, or the fact that many

children who have been arrested are never formally

charged and brought before the court.5

Data from the Court reveals that the majority of

children convicted by the court have committed petty

crimes such as theft, rather than crimes of violence.

The percentage of children who have committed

violent crimes such as rape and causing hurt is very

low.

18

Statistics also show that the vast majority of children

arrested for a criminal offence are between the ages of

16 and 18. Few children under the age of 12 have been

arrested between 2003 and 2008.

6 Note: this is based on incomplete statistics, as data disaggregated on the basis of gender was not provided from Johor, Melaka and Pulau Pinang.

As in most countries, statistics from the Court show

that the vast majority of children in conflict with the

law are boys. Between 2003 and 2009, girls made up

only 8% of children found guilty by the courts.6

Gender of Children Convicted bythe Court (2003 - 2009)


8%

92%

Boys

Girls

Data was not available on the percentage of crimes

committed by children, as compared to adults.

Number of Children Arrested for a Criminal Offence, by Age (2003 - 2008)

16-18

Age

13-15

7-12


10000

8000

6000

4000

2000

02003 2004 2005 2006 2007 2008


Statistics from the police suggest that the States with

the highest rates of child offending are those with

the largest population densities and urban centres.

Between 2003 and 2008, Kuala Lumpur and Selangor

Number of Children Arrested for a Criminal Offence in 2007 & 2008, by State

18001600140012001000800600400200

0

Perlis

Pulau

Pina

ngKe

dah

Kuala

Lump

urPe

rak

Nege

ri Sem

bilan

Selan

gor

Melak

aJo

hor

Kelan

tan

Teren

ggan

u

Paha

ngSa

bah

Saraw

ak

2007

2008


The Juvenile Justice System: Laws, Structures and Processes

The principal Act governing the handling of children in conflict with the law is the Child Act 20017, which came into force in August 2002. This Act consolidated three former Acts: the

Juvenile Courts Act 1947; the Child Protection Act

1999; and the Women and Girls Protection Act 1973.

The current Child Act governs four main categories

of children: 1) children in need of care and protection;

2) children in need of protection and rehabilitation; 3)

children beyond control; and 4) children in conflict

with the law. This study focuses mainly on the fourth

category, i.e. children in conflict with the law, with

some reference to children beyond control. The other

categories of children are being addressed under a

separate study of the child protection system being

undertaken jointly by the Ministry of Women, Family

and Community Development and UNICEF.

The Child Act outlines the main structure, processes

and procedures for responding to children who

commit criminal offences. Part X of the Act stipulates

special procedures for arrest, bail or remand, trial, and

sentencing of children, as well as defines the roles

and responsibilities of police, probation officers, the

Court for Children, and various institutions handling

child offenders. Pursuant to section 83(1) of the

Act, a child who is arrested, detained and tried for

any offence (subject to certain specified limitations)

must be handled in accordance with the provisions

of the Child Act, rather than the normal procedures

applicable to adults. The special procedures under the

Child Act modify and take precedent over any written

laws relating to procedures for arrest, detention and

consistently had the highest number of children

arrested for criminal offences, followed by Sarawak,

Johor and Kedah. States with the lowest rates of

juvenile crime were Melaka and Perlis.

7 Act 611.

INTRODUCTION20

POLICE BAILPOLICE LOCK-UP

(24 hours or up to 14 dayswith Court Approval)

POLICEINVESTIGATION

FIRST MENTIONAND BAIL HEARING

POLICE STATION PARENT AND PROBATIONOFFICER NOTIFIED

REMAND TOSEKOLAH TUNAS

BAKTI OR ASRAMA

REMAND TOPRISON

RELEASE ONBAIL

COURT FORCHILDREN HEARING

Plea, Trial andSentencing

PROBATION REPORTPREPARED

BOND ORCOMMUNITY

SUPERVISION

PROBATIONHOSTEL

12 months

SEKOLAH TUNASBAKTI3 years

HENRY GURNEYSCHOOL3 years

PRISON(maximum life)

SUPERVISION BYPROBATION

OFFICER

CASE CLOSED

General Process for Handling a Child in Conflict with the Law

ARREST

8 Section 11(6) of the Child Act, which states that Except as modified or extended by this Part, the Criminal Procedure Code [Act 593] shall apply to Courts for Children as if Courts for Children were Magistrates Courts.

trial. However, where the Child Act does not address

a specific issue, then reference may be made to the

standard procedures under the Criminal Procedure

Code.8

The following chart presents the general process for

handling a child in conflict with the law. Each stage of

the process is discussed in more detail in the sections

below.


22

AGE AND CRIMINAL RESPONSIBILITY

International Standards

Pursuant to the CRC, States parties should establish

special laws, procedures, authorities, and institutions

specifically applicable to all children in conflict with the

law. For the purposes of juvenile justice protections,

there are two key ages to consider:

The minimum age for criminal responsibility: The CRC requires States parties to establish a minimum

age below which children are presumed not to have

the capacity to commit a crime.9 Children under this

age who do commit crimes may be subject to child

protection interventions by the social welfare agency

if necessary in their best interest, but should not be

subject to arrest, investigation, detention, trial, or

liability under the justice system. While the CRC

does not state a specific age for criminal liability, the

UN Standard Minimum Rules for the Administration

of Juvenile Justice (Beijing Rules)10 state that the

beginning of that age shall not be fixed at too low an

age, and should be based on childrens emotional,

mental and intellectual maturity. In its General

Comment on Childrens Rights in the Juvenile Justice

System, the UN Committee on the Rights of the Child

recommended that the age of 12 years be set as the

absolute minimum age and that States continue to

increase this to a higher age level.11

The UN Committee has also been critical of the practice

of the doli incapax principle, which was previously

used in many common law countries. Under the doli

incapax principle, children in conflict with the law who

are above a specified age (e.g. 10) but below a higher

minimum age (e.g. 12) are presumed to be criminally

responsible only if they have the required maturity. The

assessment of this maturity is left to the judge, often

without the requirement of involving a psychological

expert, and in practice generally results in the use of

the lower minimum age in cases of serious crimes.

The UN Committee has noted that the system of two

minimum ages is often confusing, leaves much to the

discretion of the judge, and may result in discriminatory

practices. It recommends that States parties set the

minimum age at the higher of the two ages and not

permit exceptions based on subjective assessments

that children under that age are mature enough for

penal liability.12

The upper age for application of special juvenile justice protections: Pursuant to the CRC, a child is defined as a person under the age of 18. As such,

the UN Committee on the Rights of the Child has

interpreted Article 40 of the CRC to mean that every

person under the age of 18 at the time of the alleged

commission of an offence must be treated under

the rules of juvenile justice. In its General Comment

on Child Rights in the Juvenile Justice System, the

Committee emphasised that special procedural rules

and special dispositions should apply to all children

who at the time of their alleged commission of an

offence have not yet reached the age of 18 years.

The Committee therefore recommends that States

Parties that allow some children be treated as adult

criminals change their laws with a view to achieve

non-discriminatory full implementation of their juvenile

justice rules to all persons under the age of 18 years.

Status Offences: Another consideration with respect to criminal responsibility of children is so-called

status offences. A status offence refers to the

penalisation of children engaged in behaviour such as

vagrancy, truancy, running away, and being beyond

control that would not be considered an offence if

9 Convention on the Rights of the Child, Articles 1 and 40(3).10 Adopted by General Assembly resolution 40/33 of 29 November 1985.11 General Comment No. 10 (2007): Childrens Rights in Juvenile Justice, CRC/C/GC/10, available at: http://www2.ohchr.org/english/bodies/crc/comments.htm.12 Ibid.


committed by adults. The UN Committee on the

Rights of the Child has been critical of this practice

and has commented negatively on the improper use

of the juvenile justice system to tackle social or family

problems such as street children, truancy, runaways,

or difficulties in the parent-child relationship. Countries

are now increasingly recognising that these types of

behaviour problems are best addressed through non-

punitive, social welfare responses. The Committee

therefore recommends that States Parties abolish

any provisions regarding status offences in order to

establish equal treatment under the law for children

and adults.13 Similarly, the United Nations Guidelines

for the Prevention of Juvenile Delinquency (Riyadh

Guidelines) state that in order to prevent further

stigmatisation, victimization and criminalization of

young persons, legislation should be enacted to ensure

that any conduct not considered an offence or not

penalized if committed by an adult is not considered

an offence and not penalized if committed by a young

person.14

Malaysian Laws and Policies

The definition section of the Child Act 2001 states

that a child means a person under the age of

eighteen years and, in relation to criminal proceedings,

means a person who has attained the age of criminal

responsibility as prescribed in section 82 of the Penal

Code. The Penal Code states that children under the

age of 10 years are not criminally responsible for their

actions. It also includes a doli incapax provision, which

states that any act of a child who is above 10 and

less than 12 years of age is not an offence if the child

has insufficient maturity to understand and judge the

nature and consequences of his/her conduct. Where

the Court for Children is in doubt as to the age of the

child, an opinion should be sought from a medical

officer.15

In general, the special protections for child offenders

under the Child Act apply to all child offenders under

the age of 18, with some exceptions:

Children who turn 18 while the proceedings are ongoing: If a child turns 18 while the proceedings are ongoing, the Court for Children must continue to

hear the case. However, it is up to the discretion of

the Court whether it applies the special sentencing

provisions available for children under the Child Act or

imposes an adult term of imprisonment.16

Children who are only formally charged after they turn 18: If a child commits an offence while s/he is under 18 but turns 18 before s/he is formally charged,

then the trial is heard by the regular adult criminal

courts. The court may choose to apply the special

sentencing provisions available for children under the

Child Act or impose an adult term of imprisonment.17

Children charged with adults: If a child commits a crime together with an adult, the trial will be heard in the

adult criminal court, rather than the Court for Children.

However, the Court must exercise in respect of the

child all the powers which may be exercised under

this Act by a Court for Children and must consider a

probation report before sentencing the child.18

Children charged with very serious crimes: The Court for Children does not have jurisdiction over

children charged with an offence punishable with

death (murder, certain terrorism offences, hostage


13 General Comment No. 10 (2007), CRC/C/GC/1014 Article 5615 Child Act 2001, s.1616 Child Act 2001, s.83 (2)17 Ibid, s. 83 (3)18 Ibid, s. 83 (4)

24

19 Ibid., s. 11(5).20 Ibid, s. 83(1).21 Regulation 3(3) of ESCAR. This primacy of ESCAR was challenged and upheld by the Federal Court in Lim Hang Seoh v. PP, [1978] 1 MLJ 68.22 Section 46 of the Child Act provides that if a parent or guardian is unable to exercise proper control over their child, an application may be made to the Court for Children and the child may be committed to a custodial institution (an Approved School, place of refuge, Probation Hostel) or be placed under the supervision of a probation officer.23 Under s. 39 of the Act, children in need of care and protection may be removed by a police officer or Protector and temporarily detained in a place of refuge. After inquiry, the Court may order the child detained in a place of refuge for a set period of three years, place the child in the custody of a relative or other fit person, require the childs parents to give a bond for the childs good behavior, or place the child under the supervision of a social welfare officer.Ifthechildissenttoaplaceofrefugeforthreeyears,theBoardofVisitorsmayreducetheperiodofdetention,providedthechildspendsatleast 12 months in the institution. 24 Sections 66-70 governing the use and duration of Approved School orders apply only to children placed in the schools due to the commission of an offence, not those who are beyond control.

taking, waging war, mutiny, kidnapping in order to

murder, gang robbery with murder, drug trafficking).19

However, while the Child Act does not state so

explicitly, the special protection for children relating to

procedures for arrest, detention, trial, and sentencing

should still apply equally, regardless of whether the

case is before the High Court rather than the Court for

Children.

Children charged under security laws: Although the Child Act states that any arrest, detention or

trial of a child must be done in accordance with the

special provisions under the Act, notwithstanding

anything contained in any written law relating to the

arrest, detention and trial of persons committing any

offence,20 there are provisions in other laws that limit

the protection available to children for certain serious

offences. Pursuant to the Essential (Security Cases)

Regulations, 1975 (ESCAR), children charged with

offences under the Internal Security Act 1960 and the

Firearms (Increased Penalties) Act 1971 (FIPA) are not

afforded the special protections under the Child Act

and may be subject to capital punishment.21

The Child Act also includes provisions for certain status

offences, including being beyond control22 and being

subject to, or at risk of, sexual exploitation (moral

danger).23 Although not classified as offenders, these

children are nonetheless subject to similar treatment

as children who commit crimes, including temporary

detention and the possibility of being deprived of their

liberty in a social welfare institution for up to three

years. For child victims of sexual exploitation, the law

states that the maximum duration a child may be sent

to an institution is three years and allows for a reduction

in theperiodofdetentionby theBoardofVisitors.24

However, the period for detaining beyond control

children in an Approved School is not specified, nor is

it clear whether they may be entitled to early release

by theBoardofVisitors. As such, there is no clear

statutory direction with respect to how long children

classified as beyond control can be detained in an

Approved School and whether they are entitled to the

same process of periodic review and early release as

child offenders.

Structures, Processes and Practices

Malaysia has a relatively high rate of birth registration

and stakeholders were generally of the view that

age determination is not a major challenge. For most

children in conflict with the law, a birth certificate or

national ID card is easily available to confirm their

age. However, challenges do arise when dealing with

children who are non-Malaysian, since many have no

formal proof of their age or identity. Police advised

that, if a child does not have documents to prove his

or her age, then age is determined through a medical

examination, or by questioning the childs parents or

relatives.


As noted above, the Penal Code states that children

between the ages of 10 and 12 are exempt from

criminal responsibility if they have insufficient maturity

to understand and judge the nature and consequences

of their conduct. However, this provision does not

appear to be well understood or applied by Magistrates.

None of the Magistrates who participated in the study

were familiar with the provision and there is currently

no standardised inquiry or assessment process used

to determine whether a child under the age of 12 has

sufficient maturity to be formally tried by the Court. In

general, a childs maturity and degree of responsibility

are factors taken into account in sentencing, rather

than at the outset to determine whether the Court has

jurisdiction to hear the case.

Although the minimum age for criminal responsibility

is 10, statistics show that few younger children come

into conflict with the law. The vast majority of child

offenders are between the ages of 16 and 18 and in

general, less than 3 percent of children arrested by the

police are aged 12 years or younger.

Provisions under the Child Act allowing children to be

detained for being beyond control are regularly used

to respond to children committing status offences

such as running away from home, engaging in sexual

behaviour, being involved in drugs, being repeatedly

disobedient to parents, or involvement in motorbike

racing (Mat Rempit).25 Girls are more often targeted

under these provisions due to the perceived need

to control their behaviour and sexuality and because

they represent a higher proportion of runaways.26

While girls generally represent only 8 percent of child

offenders, they accounted for 56.3 percent of children

admitted to an STB for being beyond contr ol between

2006 and 2009. As the chart on page 27 shows, a

significant number of children are detained under

these provisions each year and this number has grown

significantly over the last 10 years.

25 Abdul Hadi Zakaria, Juvenile Delinquency: Its Relationship to the Family and Social Support, in Cho Kah Sin & Ismail Mohd Salleh (eds), Caring Society: Emerging Issues and Future Directions, ISIS Malaysia 1992, pp 133-149 at 134.26 Rashid, Meme Zainal, Juvenile Justice in Malaysia: The Role of the Department of Social Welfare, presented at SUHAKAM seminar on Human Rights and the Administration of Juvenile Justice, September 2008.

Number of Children Arrested for a Criminal Offence, by Age (2003 - May 2009)

Source: Royal Malaysia Police, 2003 - May 2009

16-18

13-15

12 andunder

8000

7000

6000

5000

4000

3000

2000

2003 2004 2005 2006 2007 2008 2009

1000

0

9000Age

AGE AND CRIMINAL RESPONSIBILITY26

Currently, parents who are having difficulty controlling

their children can apply to the Court to have the child

declared beyond control and sent to a Probation Hostel

(Asrama) or Approved School (STB) for a period of three

years. Prior to the Court making a determination, a

probation officer must meet with the child and parents

and prepare a report. In some cases, the child is sent

to an Asrama for a one-month period while the report

is being prepared. Some probation officers reportedly

try to discourage parents from sending their children

to an institution, referring them instead to a counsellor

or someone they trust in the community, such as a

religious leader, for advice. However, there is no

standard practice of requiring parents and children to

undergo counselling or some other form of supportive

intervention as a pre-condition to an institutional

placement.

As will be discussed in more detail below, STBs and

Asramas are closed facilities that children are not

permitted to leave at will and therefore fall within the

international definition of deprivation of liberty. Many

stakeholders raised the concern that children subject to

The punishment is not fair. Children who have run

away from home for two or three days are

sent to STB for three years.

For cases where a person is from divorced parents

or problematic families, the courts should try to

bring the family together. They shouldnt tear them

apart further by sending the young person

away for three years.

The courts should try to understand why the kid has

run and what the situation is like at the home. Then

they should advise both parents and the young

person so that steps can be taken

together to ensure that the young person

does not run away again.

The fair punishment for people who have run away

from home is through counselling and monitoring.

This should not just be for the child, but for their

parents as well. The courts should delve into

the issue deeper and find out what the

core issue is. Then they should monitor and

counsel the parents so that

they can guide their children better.

WHAT THE CHILDREN SAID

27 Data was not available for 2004 and 2005.

Number of Beyond Control Children Newly Admitted to STBs (1998 - 2009)27

Source: Department of Social Welfare , 1998 - 2009

700

600

500

400

300

200

100

1998 1999 2000 2001 2002 2003 2006 2007 2008 2009

0

* These are childrens personal views during interview sessions and it does not reflect the views of theMinistry of Women, Family & Community Development and other related government agencies.


a beyond control order are not entitled to early release

and must serve a full three-year term, regardless of the

progress that they make while in institutional care. This

has reportedly led to some children being denied the

opportunity for further schooling or vocational training.

In addition, children who run away from an Asrama

or STB are subject to being transferred to a Henry

Gurney School, which is a higher security facility run

by the Prisons Department and intended for children

who commit serious crimes. A significant number of

girls in the Henry Gurney School are beyond control

children who have run away from a JKM facility.

Several Asrama and STB staff members who

participated in the study were of the view that it was

generally not in the best interest of children to be

institutionalised because of family problems. It was

noted that while children who have committed a crime

generally realise their mistakes and understand why

they have been detained, children subject to a beyond

control order have more difficulty accepting their

situation. Many end up feeling rejected and unloved

by their family and become even more rebellious,

which can cause family reunification and reintegration

to become even more difficult. It was also noted that

beyond control children, who are often younger and

more naive, end up learning worse behaviour from the

other children in the institution. In some instances,

children as young as 11 are detained together with

17 year olds who are on remand for very serious

crimes. Some stakeholders suggested that parents

and children should be required to undergo one or two

months of counselling before considering sending the

child to an institution, or that parents should be required

to visit the facility first, to dispel misperceptions that it

is like a boarding school.

AGE AND CRIMINAL RESPONSIBILITY28

KEY FINDINGS

In accordance with the CRC and international best practices, Malaysia has established special juvenile justice

protections that apply to children who were under the age of 18 at the time the alleged offence was committed and in

some cases may be extended to young people up to the age of 21. However, there are some exceptions to this rule,

resulting in lesser protection for children who commit security offences, who are not formally charged until after they

turn 18, or who commit offences together with adults. The UN Committee on the Rights of the Child has emphasised

the importance of ensuring that juvenile justice protections apply equally to all children who were under the age of

18 at the time the offence was committed, regardless of the nature or seriousness of the offence. This is because

the rationale behind special juvenile justice protections is childrens lack of maturity and ability to fully understand the

consequences of their actions. The determining factor for special treatment is the childs level of maturity and thinking

process, not the seriousness of his/her outward actions. Childrens intellectual and emotional maturity, and therefore

their degree of culpability, remains the same regardless of the type of crime they commit.

Malaysia has also met the CRC requirement of setting a minimum age below which children are considered too young

to be held criminally responsible for their actions. However, the current minimum age is low by international standards.

As in many other countries, provisions that were intended to limit the criminal liability of children between the ages

of 10 and 12 are not rigorously applied and there is no standard process by which the Court makes assessments

of maturity based on the advice of a psychologist or other expert. In practice, the lower age of 10 is generally used.

In its Concluding Observations in response to Malaysias first country report under the CRC, the UN Committee on

the Rights of the Child noted with concern the low minimum age of criminal responsibility and recommended that

Malaysia raise the age to at least 12. Since very few children under the age of 12 are currently involved in crime, the

minimum age of criminal responsibility could be raised without compromising public security. In rare instances where

children under the age of 12 do commit crimes, they could be more effectively dealt with through social welfare

interventions, rather than being subject to criminal proceedings.

Some stakeholders were concerned that increasing the age of criminal responsibility would increase the number of

children being exploited by adults to commit crimes. However, the appropriate deterrent measure to address this

would be to more severely sanction adults who exploit children, rather than to punish children at a younger age.

Other stakeholders expressed the view that Malaysian children are currently much more mature than in the past

and therefore a lower age of criminal responsibility was justified. However, caution must be exercised in judging

childrens maturity based on their outward behaviour or demeanour. The ability to understand the consequences of

ones actions and to make reasoned, moral decisions are skills that develop through the course of adolescence and

early adulthood. A study undertaken in the Philippines demonstrated that adolescents who appear mature and act

street-smart, such as street children, were in fact more delayed in their moral and cognitive reasoning than school-

going children of the same age.

The current provisions allowing children to be deprived of their liberty for status offences such as running away, being

disobedient or otherwise beyond control are also cause for concern. This approach, inherited from outdated British

legislation and once prevalent throughout the Commonwealth, has now been proven to be ineffective. Adolescence

can be a trying time for families and parents struggling to cope with teenage misbehaviour should be able to access

guidance and support. However, as the UN Committee on the Rights of the Child has emphasised, children should

not be sanctioned for behaviour that would not be considered criminal if committed by an adult. Acting out and

engaging in rebellious behaviour is a normal part of the process of growing up and most children will age out of

this behaviour on their own. Overly intervening with punitive measures has proven to be counter-productive, as this

disrupts the parent/child relationship and risks reinforcing the childs deviant identity.



KEY FINDINGS

While technically children who are beyond control are not considered offenders, they are nonetheless subject

to the same conditions of detention as child offenders, which they themselves perceive as punishment. The current

practice of detaining children for three years is arguably excessive, unduly costly to the State, and does little to heal

the parent / child relationship or to build the childs cognitive and social skills. In addition, detaining children with

minor behaviour problems together with child offenders is contrary to international best practices regarding criminal

contamination, and may actually be increasing the chances that the child will go on to a life of crime. International

experience suggests that adolescent behaviour problems are best addressed through non-punitive, social welfare

responses targeting both the child and his/her family, rather than costly and ineffective institution-based rehabilitation

programmes.

30

ARREST AND INVESTIGATION

International Standards

The first encounter a child has with the juvenile

justice system is usually when s/he is arrested by

the police. This first contact can have a lasting impact

on the child and can profoundly influence the childs

attitude towards authority figures and the rule of law.

The Beijing Rules therefore require that any contact

between law enforcement agencies and a child must

be managed in such a way as to respect the legal

status of the child, to promote his or her well-being

and to avoid harm to the child.28

The CRC requires that the formal arrest and detention

of a child be used only as a measure of last resort.29

Where a child is arrested, States parties must guarantee

the childs right to be informed promptly and directly of

the charges and to have the assistance of their parents

and a legal representative.30 In order to ensure parental

involvement at the earliest possible stages of the

proceedings, the Beijing Rules state that, whenever

a child is apprehended by the police, his/her parents

must be notified immediately, or within the shortest

possible period of time. The Rules also recommend

that police officers who frequently or exclusively deal

with child offenders or who are primarily engaged in

the prevention of juvenile crime be specially instructed

and trained. In large cities, special police units should

be established for that purpose.31

Appropriate handling of children by the police is

important not just from the perspective of childrens

rights and wellbeing, but also in terms of long-term

public safety. International studies have produced

consistent evidence that police can actually increase

the risk that a child will re-offend simply by acting

disrespectfully or unfairly when interacting with

them.32 Children who are treated with respect and

fairness are more likely to accept responsibility for their

actions, while those who experience abuse or unfair

treatment tend to become resentful and distrustful

of adults and other authority figures. There is also a

growing body of research to show that a surprisingly

high number of children falsely confess to crimes they

did not commit, often because they are covering for

a friend, or feel compelled to confess as a result of

pressure applied by the investigating authority. This

undermines the ultimate aims of law enforcement and

the justice system, which is to discover the truth. For

these reasons, the UN Committee on the Rights of

the Child has stated that children being questioned

by law enforcement officials must have access to a

legal or other appropriate representative and must be

able to request that their parent(s) be present during

questioning. Police officers and other investigating

authorities should be well trained to avoid interrogation

techniques and practices that result in coerced or

unreliable confessions or testimonies.33

As a result, police forces around the world have begun

to recognise the need for a specialised response to

handling children in conflict with the law. This has

included reforms such as: restricting the types of

offences for which children can be arrested and held

in police custody; requiring the use of alternatives to

formal arrest such as a summons or written notices

to appear in court; establishing specialised police

units to handle children in As a result, police forces

around the world have begun to recognise the need

for a specialised response to handling children in

28 Article 10.29 Article 37(b).30 Article 40.31 Article 10.1 and 12.32 McLaren, Kaye, Tough is not Enough. Getting Smart about Youth Crime: A review of research on what works to reduce offending by young people, New Zealand Ministry of Youth Affairs, 2000, available at: http://www.myd.govt.nz/uploads/docs/0.7.4.2%20tough%20fulldoc.pdf.33 General Comment No. 10 (2007), CRC/C/GC/10.

ARREST AND INVESTIGATION32

conflict with the law. This has included reforms

such as: restricting the types of offences for which

children can be arrested and held in police custody;

requiring the use of alternatives to formal arrest such

as a summons or written notices to appear in court;

establishing specialised police units to handle children

in conflict with the law; developing police policies or

standard operating procedures for handling children;

and requiring that a parent, relative or lawyer be

present whenever a child is questioned by the police,

failing which any statement taken from the child is

inadmissible as evidence.

Malaysian Laws and Policies

The Malaysian Constitution guarantees everyone the

right to be protected from deprivation of liberty except

in accordance with the law.34 Under Malaysian law, a

person may be arrested by the police with or without a

warrant. The power to arrest without warrant is quite

broad, including the arrest of any person who has

no ostensible means of subsistence or who cannot

give a satisfactory account of himself. Preventative

detention is also authorised under the Internal Security

Act 1969, the Emergency (Public Order and Prevention

of Crime) Ordinance 1969, and the Dangerous Drugs

(Special Preventative Measures) Act 1985. If a person

forcibly resists arrests or tries to escape, the police

may use all means necessary to affect the arrest.35

These legal provisions apply equally to both children

and adults and there are no special provisions in law

restricting the use of formal arrest or force when

handling children.

The Criminal Procedure Code states that, where a

person is arrested, s/he must be informed of the

grounds for the arrest and must be allowed to consult

and be defended by a legal practitioner of his choice.36

Any statement taken by the police is inadmissible if

any inducements, threats or promises have been

made.37 The Child Act includes additional protections

for children, stating that when arresting a child, the

police must immediately inform a probation officer

and the childs parent or guardian of the arrest. A copy

of the charge must be sent to the probation officer

to facilitate the preparation of a probation report.

However, there is no specific requirement to have a

probation officer, parent, guardian, or other support

person present while a child is being questioned by

the police.

When a person is arrested, the police must without

unnecessary delay either release the person on bail, or

bring them before a magistrate within 24 hours.38 If the

person is arrested for a bailable offence, the police

may either release the person on their own bond, or

hold them in police detention while they conduct the

investigation. Decisions about whether to release a

person on police bail are made by an Inspector and

release at this stage does not require the deposit of a

cash bond.39

As a general rule, investigations must be completed

within 24 hours.40 If the investigation is not completed

within that time period, the police must bring the

person before a magistrate for a decision as to

whether to extend the period of police custody, or

release the person on bail. Recent amendments to the

34 Article 5.35 Police Act 1967 (Act344), s. 27.36 Section 15(2).37 CPC, s. 113(1).38 CPC, s. 28.39 CPC, s. 29.40 CPC, s. 28, 29.


Criminal Procedure Code have reduced the amount of

time the police may hold a person for investigation of

a criminal offence. Previously, police custody could be

extended for up to 14 days for all offences. At present,

if the offence is punishable with imprisonment for

less than 14 years, the maximum period is four days

for the first detention and three days for the second

detention. The Magistrate must review the case and

decide whether the second period is warranted. For

more serious offences, the maximum period is seven

days for the first detention and seven days for the

second detention. However, persons arrested under

the Internal Securities Act and for drug offences may

be detained in police lock-ups for up to 60 days at the

discretion of the police, without Court oversight.41

The Child Act does not include specific provisions with

respect to the length of time that children may be

held in police custody for investigation, other than the

requirement that they be brought before a Magistrate

within 24 hours. As a result, the law has generally been

interpreted to mean that the normal provisions under

the CPC and other laws apply equally to children.42

However, the Child Act states that, where a child is

detained at a police station, appropriate arrangements

must be made to prevent the child from coming into

contact with adult offenders, and to protect the childs

privacy from the media.43

In addition to procedural laws, the police are also

guided by more detailed internal Inspector General

Standing Orders, Directives, and Codes of Practice.

For example, an Administrative Directive was issued

in 2004 regarding the police obligation to inform

and permit family members to visit suspects (adults

and children) detained in police lock-ups, as well as

suspects right to counsel and right to be informed

on grounds for arrest.44 There are also directives

instructing police not to use handcuffs against

children unless the child is violent or uncontrollable, to

contact probation officers immediately when a child is

arrested, and to expedite the release of children who

are on remand.45 There is currently no comprehensive,

detailed directive addressing all aspects of handling

cases involving child suspects, however, more

detailed guidance is reportedly in the process of being

developed.

Structures, Processes and Practices

In 2004-05, the Royal Malaysia Police underwent

a comprehensive Royal Commission review. The

Commission highlighted a number of challenges facing

the police force, including lack of sufficient resources

for managing child suspects and victims, insufficient

training in the treatment of children and the Child Act,

insensitivity to child suspects when affecting arrests,

and under-resourcing of police stations and police lock-

ups. In terms of general police practices, the Report

noted a tendency to arrest first, investigate later,

resulting in unnecessary use of police custody and

remand. The Commission also expressed concern

that police investigations tended to be confession-

based, rather than evidence-based. It noted that, while

the majority of police officers perform their duties

with integrity, there was evidence that physical and

psychological abuse was sometimes used by police

interrogation officers to extract confessions and that

the sheer number of complaints regarding police

41 Internal Security Act, s. 73; Dangerous Drugs (Special Preventative Measures) Act 1985, s.3.42 Public Prosecutor v. N(A Child), [2004] 2 MLJ 299.43 Section 85.44 Administrative Directive No. 12/2004 KPN (PR) 63/5; CID Directive No. 8/2004, as referenced in the Royal Commission Report. Copies were not available for review.45 These directives were not available for review. The information provided is based on interviews with police personnel.

ARREST AND INVESTIGATION34

mistreatment warranted concern. The Commission

made a number of general recommendations to

modernise and strengthen the police force, including

some recommendations specifically related to the

handling of children. These included disseminating

knowledge of the Child Act, improving arrest and

investigation process in child cases, and establishing

a separate Child Division by 2010.46

Following the Royal Commission report, the Royal

Malaysian Police Force has made significant

progress in improving police practices and promoting

specialised handling of children. A Sexual and Children

Investigation Division (D11) was established at the

national level, with specialised units in every district,

staffed primarily by female police officers. However, to

date the focus of the Child Protection Units has been

mainly on children as victims, rather than children as

offenders. Responsibility for investigating children

alleged to have committed a crime depends on the

type of offence involved (e.g. narcotics department,

criminal investigation department, traffic branch).

Similarly, while progress has been made in providing

in-service training on special skills and techniques for

interviewing children, the focus has primarily been on

children as victims. There is no specific component

on handling child suspects in the general induction

training programme provided to all new police

recruits, nor opportunities for in-service training or

specialisation in this area through the Police College.

The majority of the police officers who participated in

the study were of the view that specialised training

on techniques for handling children in conflict with the

law would be beneficial. It was noted that, while they

do receive some information regarding the Child Act

and childrens rights, there are no opportunities as yet

for skills-based training relating to child development,

child psychology, or special interview techniques to

use with child suspects. The Training College advised

that it is considering developing a specialised course

on handling children, as well as integrating modules

on children into its advance training programmes on

issues such as investigation and interrogation.

Despite the lack of specialized units, the police

reportedly do take a different approach when

dealing with children in conflict with the law. Police

advised that they generally do not handcuff children

unless necessary and use softer, more encouraging

interrogation techniques. Attempts are also made to

contact the childs parents as soon as possible after the

arrest, though this is sometimes challenging if children

provide incomplete or deliberately false information,

if the parents live far away, or if the child is non-

Malaysian. Priority is also placed on releasing children,

rather than holding them in police custody, unless

detention is necessary to complete the investigation.

Where children are held in police custody, they are

kept separate from adult offenders. In many cities,

specialised juvenile lock-ups have been established,

however police acknowledged that facilities are still

lacking in some areas. Where there is no separate

juvenile lock-up, children are at minimum placed in a

separate cell from adults.

The veteran officers may more than likely to help you out compared to the younger officers.

Younger police officers are rougher than the older ones. They are more egoistic and want to show off

that they have the power just becausethey are in uniform.

The police dont usually tell children of their rights or even explain what crime they have supposedly

committed. And they dont let them know thatthey can also call a lawyer.

The police should learn to respect young people. Only then will young people respect the police.

WHAT THE CHILDREN SAID

46 Report of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police, 2005.

* These are childrens personal views during interview sessions and it does not reflect the views of the Ministry of Women, Family & Community Development and other related government agencies.


informed of their rights. SUHAKAM has noted that

among the complaints it has received, they include

inappropriate treatment of children and abuse of

remand procedures. SUHAKAM has therefore

recommended the establishment of specialised

police units to deal with children in conflict with law.47

In addition, while significant progress has been made

in improving lock-up facilities for children, there

remain some concerns with conditions of detention.

Many of the police officers who participated in

the study highlighted the need for investment in

improved facilities and for the es

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